House Apportionment Committee's Motion to Intervene granted

I do not have access to PACER tonight, but I have received multiple confirmations that Judge Carlton Reeves has granted the House Apportionment Committee's Motion to Intervene in NAACP v. Barbour, et al. The intervention motion had been opposed by the Mississippi Republican Party and Secretary of Sate Delbert Hosemann (R).

More on this next week.

Friday afternoon notes on NAACP v. Barbour, et al *UPDATED*

There has been little movement today in NAACP v. Barbour, et al, despite the rumors that a three judge panel has been named. (It hasn't. I believe that to be MSGOP misinformation designed to hold the GOP legislators in line as they head home over the weekend.) The only movement so far today is the response by the House Apportionment Committee to the Mississippi Republican Party's and Secretary of State Hosemann's opposition to their intervention.

(Intervention means a party that has not been named as a plaintiff or a defendant in a lawsuit gets to come in and participate as a party to the lawsuit.)

The Committee's response is short and sweet, basically saying that nothing prohibits them from intervening in the lawsuit, and that's evidenced by the Court allowing them to intervene 20 years ago.

On another note, it has been reported that Senate Democrats have already joined the lawsuit. That's a bit misleading, as they have only voted to hire counsel to do so. They haven't actually filed a Motion to Intervene yet, although they surely will soon.

Update - This afternoon Judge Carlton Reeves signed an order granting the appointment of a three judge panel. In the order, Judge Reeves notes that the NAACP had asked for the three judge panel, and that all parties were in agreement that one should be appointed. Now that the order has been signed, it's up to Chief Judge Edith Jones of the Fifth Circuit to name the other two judges. More on that here.

Clarification regarding Dickie Scruggs' participation in the 2002 redistricting lawsuit

A reader emailed the other day and suggested clarification of Dickie Scruggs' participation in the congressional redistricting lawsuit in 2002. That case was Mauldin v. Branch, and it involved the manner in which the Legislature drew the congressional districts in response to the 2000 census. You'll recall that as a result of the 2000 census numbers, Mississippi lost a congressional seat, taking us from 5 to 4.

The battle lines were drawn in that case along party lines. Counsel for the Republicans in that lawsuit were: Mike Wallace, Christopher Royce Shaw, Arthur F. Jernigan, Richard F. Scruggs, F. Keith Ball, Grant M. Fox, Staci Bozant O'Neal.

So, yes, Dickie Scruggs represented Republicans in the 2002 Congressional redistricting case. Surprised?

Also of note: Keith Ball is now a federal magistrate judge (and a damned fine one). He is currently the magistrate assigned to NAACP v. Barbour. Those of you screaming that Judge Reeves should recuse himself over his involvement in Mauldin need to make the same demand of Ball if you truly believe prior involvement in redistricting cases with counsel currently at bar is grounds for recusal.

Lots of activity in NAACP v Barbour, et al

There are 16 docket entries so far today in NAACP v. Barbour, et al, the legislative redistricting case. Here's what's been filed:

Attorney General Jim Hood's Answer and Response to Motion to Intervene

Mississippi Republican Party's Response to Motion to Intervene and Response to Motion for TRO

Governor Haley Barbour's Answer

Connie Cochran's Answer, Response to Motion to Intervene and Response to Motion for Three Judge Panel

Secretary of State Delbert Hosemann's Answer and Response to Motion to Intervene

Order of the Court setting deadline for responses from NAACP and the House Apportionment Committee to the opposition of Hosemann and the Mississippi Republican Party to intervention. The deadline is 9 a.m. tomorrow.

Order of the Court stating its intention to hold a hearing on the temporary restraining order. That hearing will be scheduled after Monday, April 4, 2011.

That's a lot of documents, and I don't have time to put them all on Scribd. The number of documents and a time crunch also will make the rest of this post somewhat scattered. Forgive me in advance.

Here's the skinny: As for whether or not the House Apportionment and Elections Committee should be allowed to intervene, AG Hood does not oppose it, but the Mississippi Republican Party and Secretary of State Hosemann do. The lawyer for the Mississippi Republican Party, Mike Wallace, argues that the Committee does not have a "protectable interest" in the lawsuit. In reference to the fact that the Committee was allowed to intervene 20 years ago, Wallace argues that this case is different because the House plan wasn't stricken by the Department of Justice. It's an inventive argument, but don't see it going very far. Hosemann, through his lawyer Robert Gibbs, makes a more interesting argument that the rules of the House don't specifically grant the Committee the power to enter into litigation, and therefore the Committee doesn't have the power to do so. I honestly wonder how that argument played out twenty years ago.

With respect to the TRO, which would prevent legislative elections this November under the current districts, Wallace argues that the Mississippi Republican Party didn't understand the request for a TRO until yesterday, and therefore didn't oppose it until now. Now, Wallace argues, a single judge doesn't have the authority to grant a TRO except in "extraordinary circumstances." Wallace offers no authority for this language, and the law itself imposes no such limitation on Judge Reeves' power. A thorough reading of the statute reveals that a single judge, in this case Judge Reeves, can enter a TRO if "specified irreparable damage will result if the order is not granted...." Furthermore, any decision by Reeves on the TRO can be reviewed by the three judge panel. Wallace admits that the districts are unconstitutional as drawn, but that the 3 judge panel should make the call on the TRO since they will, presumably have plenty of time to do so. What's interesting here is that Wallace is arguing in circles. First, he admits that the current districts are unconstitutional. Then he says that Judge Reeves should wait until a three judge panel can determine what Wallace just admitted. In short, there is no real opposition to the TRO, it's just that Wallace doesn't want Judge Reeves to be the one to grant it.

What's the takeaway from all of this? Well, the MSGOP wants to wait until after a 3 judge panel can be appointed before a TRO is entered, one that they presumably wouldn't oppose. (They just admitted the current districts are unconstitutional, after all.) It's all part of their delay game, which I've talked about ad nauseum here. They don't want the Court to move quickly enough to resolve this matter prior to June 1, which would necessitate two elections. They want two elections because they feel they have a better chance of taking the House if there are two elections. That's been their overarching strategy since this whole thing started, so it's no surprise that they're sticking with it now. I also believe that some Republican legislators were sold a bill of goods by Republican strategists as to how all of this would play out, and the TRO was, inexplicably, not something they mentioned. I believe Wallace's attempt to stay the TRO is an attempt to hold the team together in the short run.

As an aside, I find it interesting that the Mississippi Republican Party has as its attorney someone who has been hostile to the very existence of the Voting Rights Act. Wallace is a smart man and an able attorney, but he carries some baggage the MSGOP may not want associated with it in this lawsuit going forward.

Rep. Flaggs, you're 1/3rd of the way to a dinner on me, sir

Rep. George Flaggs (D - Vicksburg) and I made a friendly bet last night about how the remainder of the session will play out. He made 3 predictions about how some of the most important unresolved issues will play out. In order to win, he has to be right on all three. Well, he nailed one of the predictions already, as a budget compromise was reached late yesterday evening. The new budget will cut $15M in education funding, but Gov. Barbour has promised to fill that hole with money he gets from the stimulus package. We got level funding on education, and I don't care how we got there. I do wish that we could find the money to fund education as we did a few years ago, though. I know that would be a blessing to systems like Clinton Public Schools that laid off teachers last year.

Anyway, I'm going to keep the details of the other predictions secret until they're met. I'll post here each time Rep. Flaggs gets closer to winning.

A thank you to Y'all Politics for the twitter plug

Comments are broken over at Y'all Politics as they begin using Facebook as their login, but I wanted to thank them for the twitter plug. (It may be a problem on my end, Alan says it should work.) In a recent post, their "award winning Memory Division" has recalled what they seem to believe will be grounds for recusal of Judge Carlton Reeves. Seems they think that since Reeves represented individuals in the 2002 congressional redistricting case, Mauldin v. Branch, that he will now be unable to sit as judge in NAACP v. Barbour, et al. They also complain that he was co-counsel with Rob McDuff, who now represents potential intervenor House Apportionment Committee in NAACP v. Barbour, et al.

Two things: The parties aren't the same in Barbour as they were in Mauldin. So, no, Judge Reeves didn't formerly represent a party at bar in Barbour. Also, a judge's former co-counsel in a case 9 years ago appearing in a current case is not grounds for recusal. (I'm not even certain that they were actually "co-counsel" in the case, or whether they just represented parties on the same side of the "v.")

But there is something interesting about what Y'all Politics posted. Dickie Scruggs' name appears as an attorney for the appellants.

The clock's ticking on responses in NAACP v. Barbour, et al

Well, things got moving quickly this morning with Judge Dan Jordan recusing himself from the NAACP v. Barbour redistricting lawsuit. Apparently he has a relative who will be running for the legislature this November.

Enter Judge Carlton Reeves. Judge Reeves held a telephonic hearing earlier this afternoon, and the minute entry from said hearing is as follows:

Minute Entry for proceedings held before District Judge Carlton W. Reeves. Telephone Conference held on 3/30/2011. The parties are to respond to the Motion to Intervene by noon on 3/31/2011. The parties were also advised to file any answers or additional pleadings relating to this matter by noon on 3/31/2011. A text order will follow. (JS) (Entered: 03/30/2011)

Judge Reeves is getting ready to rule on two things:

First, he's going to rule on the Motion to Intervene by the House Apportionment Committee. That's likely to be granted, as no one has objected to the intervention.

Second, and of utmost importance, Judge Reeves is about to rule on the Motion for Preliminary Injunction that would prevent elections from being held this November in the current districts. Due to the fact that both the Mississippi Democratic Party and the Mississippi Republican Party have already agreed that an injunction is proper at this point, this injunction will most likely be granted. (See paragraph 78 of the MS Democratic Party's Answer and paragraph 77 of the MS Republican Party's Answer, both of which are linked below.) If you are Senators Briggs Hopson, Buck Clarke, Nolan Mettetal, Lydia Chassaniol or Ezell Lee, this is not welcome news.

Here are links to documents referenced above and others that are interesting:

Answer of the Mississippi Democratic Party

Answer of the Mississippi Republican Party

Motion to Intervene by the House Apportionment Committee

Memo in Support of the House Apportionment Committee's Motion to Intervene

Proposed Answer of the House Apportionment Committee

Judge Dan Jordan recuses himself from NAACP v Barbour; Judge Carlton Reeves new judge

Kingfish over at Jackson Jambalaya broke the news this morning that Judge Dan Jordan has recused himself from the legislative redistricting lawsuit. Judge Carlton Reeves, a recent Obama appointee, has been assigned to replace him.

I'm out of town, so I haven't seen the order. My guess is that Jordan recused due to the involvement of his old firm, Butler Snow, as counsel to the House during the creation of the House map.

So who, exactly, will be on the three-judge panel deciding the redistricting case?

There's been a lot of talk recently about NAACP v. Barbour et al, the Mississippi legislative redistricting case, but not a lot of it has focused on the next step: the appointment of the three-judge panel that will decide the case.

The first judge, Dan Jordan, was chosen by lot when the case was filed. The two judges that round out the panel will be chosen by Fifth Circuit Court of Appeals Chief Judge Edith Jones. Jones, former counsel to the Texas Republican Party, will be under a high level of scrutiny as she makes the selection. Unlike other circuits, the Fifth does not have a written set of rules that determine the appointment of these panels in redistricting cases. All we know is that there should be one judge from the Fifth Circuit who is from Mississippi, and one more judge from the U.S. District Court for the Southern District of Mississippi. (Jordan is from the Southern District.)

The last time two judges were appointed to complete a three-judge panel to handle Mississippi legislative redistricting, the appointments went to the judges with the lightest caseloads. That makes the most sense, as these cases are extremely time-consuming, and the potential impact on other litigants within the Fifth Circuit and the Southern District is immense. If Jones is to follow precedent, she would appoint District Judge Carlton Reeves and Circuit Judge James Graves to complete the panel, both of whom are African-American. If she doesn't chose Reeves and Graves, there will no doubt be accusations that she is rigging the panel along political and/or racial lines.

My prediction? Some Mississippi Republicans are singing each other to sleep with a fictitious refrain that Barbour has already cut some sort of deal with Chief Judge Jones regarding the appointments. First off, that'd be earwigging. (Ask Dick Scruggs how that worked out for him.) Second off, even if you believe that Barbour and Chief Judge Jones would be unethical enough to engage in such behavior, you'd have to believe that Barbour had something of worth to offer her. What's that going to be? An appointment to the Supreme Court if Barbour becomes president? That's not just cynical, it's delusional.

So fantasy land aside, what's going to happen? Jones, while known as a staunchly conservative jurist, is not likely to blindly tow the GOP line and appoint judges who will draw whatever map the MSGOP hands them (if you even believe that such judges exist). If Jones is to throw the Mississippi Republican Party a bone, it will go down this way: she'll deviate from the practice of appointing the judges with the lightest caseloads and will instead go to the senior Mississippi member of each court and ask if they would like to handle the matter or defer to the next judge in line. In the end, I think she'll do what she should do, and that's stick with precedent and appoint those with the lightest caseloads. That would, without doubt, be in the best interest of judicial economy.

As it stands right now, though, the state defendants in NAACP v. Barbour et al (Barbour, Attorney General Jim Hood, and Secretary of State Delbert Hosemann) have yet to respond to the lawsuit or indicate that they object to the formation of a panel under 28 U.S.C. 2284, which governs the creation of three-judge panels. So it may be a bit before the panel is announced.

Motion for Preliminary Injunction in NAACP v. Barbour, et al

Majority in Mississippi has the document, which is embeded below. The NAACP is asking the three-judge panel to issue an injunction which would prohibit the state from holding legislative elections in November under the current districts. The basis for this request is that the current districts are so malapportioned as to violate the "one man, one vote" rule. Put simply, the concept is that a Mississippian in a legislative district that contains around 40,000 people more than other legislative districts is obtaining less representation than he or she should under the law.

One big issue most thought would be resolved by now? The composition of the three-judge panel.

Here's the Motion:

Motion for Preliminary Injunction

A word from Rep. Cecil Brown about the budget battle

Rep. Cecil Brown (D-Jackson)

Here we are, days away from the end of the 2011 legislative session, and we still don’t have a state budget for the fiscal year that starts July 1.

The Legislature and Gov. Haley Barbour remain at odds over the budget with the governor insistent on cutting funding levels for state agencies. We in the state House staunchly disagree. We believe there is no reason to cut state agency funding when we clearly have adequate money.

Let me explain our key areas of disagreement.

Education tops the list. House and Senate members have approved the same level of funding for K-12 public schools, $2.2 billion. House and Senate members also have approved the same level of funding for community colleges, $233 million.

The governor, though, wants to reduce K-12 funding by $30 million. While the figure is down from the $65 million he wanted last week, the $30 million would still sting tremendously because it would include $6 million to reimburse teachers for classroom expenses and $24 million from school operating expenses and teacher salaries. That’s unacceptable.

Education has weathered some tough times. Over the past three years, we have reduced K-12 spending by more than $300 million. We have seen teachers lose their jobs. We have seen academic programs eliminated at some schools. And we have seen the teacher-student ratio increase. This is no way to run a school system. Education simply can’t afford additional cuts.

Here’s another important point: If we followed through with the governor’s plan, local property taxes most assuredly will increase as school districts try to find ways to fund day-to-day expenses. In other words, the governor’s proposed funding cuts are nothing more than a backdoor tax increase.

Mental health is another point of disagreement. House members voted to fund mental health by $252 million, including $20 million to operate community mental health facilities. Gov. Barbour wants to fund mental health at $235 million.

The governor’s funding level does not include enough money to operate the community mental health facilities. These local offices that treat and care for people with no other places to go would shut down. Patients would end up on the street or back in jail where many were before. There is just no reason to make this cut when there are funds available to pay for these local centers, especially since they use these state funds as a match for more Medicaid funds.

Another area of disagreement is agriculture units at Mississippi State University and Alcorn State University. The House voted to fund the units at $75 million, but the governor wants to cut the funding by $5.4 million.

The governor’s reasoning is unclear. Perhaps it is in retaliation for the Mississippi Farm Bureau’s opposition to his position on eminent domain. In any case, this proposed cut is arbitrary and destructive to jobs in agriculture in Mississippi.

Our state has not been immune to the economic problems that have dominated our country.

To that end, we in the House have provided a proposal to the Senate to properly fund education, mental health and university priorities while leaving more than a $200 million balance in the rainy day and reserve funds in addition to the $47 million balance in the Hurricane Disaster Funds. Ours is a sound budget. A fair budget. A good budget.

- Rep. Cecil Brown (D-Jackson)
  House Education Committee Chairman

Tracking the MSGOP strategy and spin on the budget battle

There's an ad running on radio right now that's paid for by Mississippi Republicans and is about as bad as it gets.  The ad claims that the Democrats in the Mississippi House want to spend $500M "we don't have."  That's weird, because the House and the Senate/Barbour are only $40M apart in negotiations.  Guess that means the fiscally conservative Gov. Haley Barbour and his legislative foot soldiers only wants to spend $460M we don't have.

How dumb does the MSGOP think you are?  I guess the answer to that is "not dumb enough", considering they want to slash funding to education....

An update on the budget battle

BetterMSReport.com has been covering the ongoing budget battle between the Mississippi House and Gov. Haley Barbour better than anyone else.  The crux is this: Barbour wants to slash funding for education and mental health, and the House doesn't.

To bring you up to speed, here are Better Mississippi Report's stories on the budget showdown:

Rally for K-12 Education, Mental Health Set for Tuesday at Capitol

Barbour Increases Budget Heat on House, Senate Republicans

Barbour's Funding Cuts Could Raise Local Property Taxes on Homes, Vehicles

Budget Update: No Movement Saturday Night After Barbour Meeting

Mississippi Budget Issues at a Glance